Overview
Italy is an EU member state and part of the European Arrest Warrant system. The legal basis is Framework Decision 2002/584/JHA and Sections 78 ff. IRG. In quantitative terms, Italy is one of Germany's most important extradition partners; proceedings concerning organized crime, drug offenses and economic offenses are especially common.
In Italy cases, detention conditions are of particular practical relevance — following the ECtHR pilot judgment Torreggiani and Others v. Italy (8 Jan 2013), Italian prisons were found to violate Article 3 ECHR on account of structural overcrowding. Italy has since carried out reforms, which the ECtHR essentially recognized in 2014 (Stella and Others v. Italy); an individual review under Aranyosi/Căldăraru nevertheless remains necessary.
A second focus: Italian judgments in absentia (in contumacia). Under Framework Decision 2009/299/JHA and Section 83 IRG, where the requested person was not duly summoned, an assurance of a retrial must be obtained.
Legal basis
Extradition to Italy is governed primarily by Framework Decision 2002/584/JHA on the European Arrest Warrant, transposed in the Eighth Part of the IRG (Sections 78 ff. IRG). On the Italian side, Law No. 69/2005 (Mandato d'arresto europeo) applies, most recently reformed by Law No. 117/2019.
On the German side, the Higher Regional Courts are competent in the admissibility proceedings (Section 29 IRG); the granting decision is made by the General Public Prosecutor's Office (Section 79(2) IRG). On the Italian side, the Corti d'appello (courts of appeal) are competent for issuance and execution; the court of review is the Corte di cassazione.
For German citizens, Article 16(2) of the Basic Law in conjunction with Section 80 IRG applies: extradition for the purpose of prosecution only where there is a substantial connection abroad and an assurance of return. Where the offense has a purely domestic connection, extradition is generally inadmissible.
Country-specific issues in Italy
Detention conditions (ECtHR Torreggiani and Others v. Italy, 43517/09 and others, 8 Jan 2013): The pilot judgment found structural overcrowding in Italian prisons (in part below 3 m² per detainee) and set Italy a deadline to remedy it. Following the subsequent decision Stella and Others v. Italy (25 Sep 2014), the ECtHR essentially recognized the reform measures taken. An individual review of detention conditions under Aranyosi/Căldăraru remains necessary.
Judgments in absentia (in contumacia): Italian criminal law recognizes proceedings in absentia. Where there has been no proper summons, Section 83 IRG in conjunction with Framework Decision 2009/299/JHA requires an assurance of a retrial. The 2014 Italian reform (Law No. 67/2014) improved the rights to a retrial.
Organized crime: the Mafia offenses (Art. 416-bis c.p. — associazione di tipo mafioso) are covered by the list catalogue of Art. 2(2) of the EAW Framework Decision; a dual-criminality review does not apply. Where the person is assigned to high-security detention under Art. 41-bis of the Penitentiary Code (Ordinamento Penitenziario, O.P. — carcere duro), however, specific assurances must be obtained.
Principle of mutual trust: despite isolated criticism, Italy is firmly established as a state under the rule of law; systemic deficiencies within the meaning of the ECJ (L and P) are not assumed.
Detention conditions and the human-rights review
Until the pilot judgment Torreggiani and Others v. Italy (2013), detention conditions in Italian prisons were structurally marked by overcrowding and material deficiencies. In response, Italy carried out reforms — among other things, an expansion of alternative sanctions, relief measures in the enforcement of sentences, and a possibility of a retrial for affected persons. The ECtHR essentially recognized the measures in 2014; the CPT confirmed selective progress in follow-up reports.
Individual facilities nevertheless remain overcrowded; the carcere duro regime under Art. 41-bis O.P. has been internationally criticized as a severe form of isolation (ECtHR Paolello v. Italy, 37648/02; Provenzano v. Italy, 55080/13). For organized crime, specific assurances must be obtained.
In German case law, extraditions to Italy are regularly admissible; where there is substantiated submission regarding the specifically envisaged facility, however, an inquiry to the Italian judicial authority under Aranyosi/Căldăraru is required.
Lines of defense
The defense in Italy EAW cases follows a multi-layered pattern:
- Section 80 IRG (extradition of Germans): review of the connection to the place of the offense and the assurance of return.
- Section 83 IRG (judgments in absentia): for convictions in contumacia, an assurance of a retrial under Framework Decision 2009/299/JHA. Since the 2014 reform, the Italian authorities have been cooperative.
- Aranyosi/Căldăraru (detention conditions): individual review of the specifically envisaged facility; cell floor space (Muršić v. Croatia: 3 m² minimum threshold), occupancy density, sanitary conditions.
- Art. 41-bis O.P. (carcere duro): where the person is assigned to high-security detention, concrete assurances regarding the ban on contact, cell isolation and duration. Draw on the ECtHR case law concerning compatibility with Article 3 ECHR.
- Section 81 IRG (dual criminality): a substantive review outside the list catalogue. For Italian particularities (e.g. concorso esterno), a thorough classification.
- Rule of specialty (Section 83h IRG): limitation of prosecution to the offenses granted.
- Simplified procedure (Section 41 IRG): where the facts are clear and the person wishes a swift surrender.
- Urgent application to the OLG and constitutional complaint: for legal or human-rights objections.
Legal representation in Italian extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.